Applicant S243/2003 v Refugee Review Tribunal

[2005] FCA 1225

FEDERAL COURT OF AUSTRALIA

Applicant S243/2003 v Refugee Review Tribunal [2005] FCA 1225

APPLICANT S243/2003 v REFUGEE REVIEW TRIBUNAL, SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & THE COMMONWEALTH OF AUSTRALIA

N 1028 of 2003

SACKVILLE J
1 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1028 OF 2003

BETWEEN:	APPLICANT S243/2003 APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT
SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT
THE COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	1 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.          The application for an order nisi be dismissed.

2.          The applicant pay the respondent’s costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1028 OF 2003

BETWEEN:	APPLICANT S243/2003 APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT
SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT
THE COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT

JUDGE:	SACKVILLE J
DATE:	1 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The High Court has remitted to this Court an application for an order nisi requiring the respondents to show cause why constitutional writs should not be issued in respect of a decision of the Refugee Review Tribunal (‘RRT’) handed down on 28 May 1999.  The RRT affirmed a decision of a delegate of the Minister refusing the applicant a protection visa.

2. The Minister has not been named as a party to the proceedings.  However, for present purposes nothing turns on that omission or the inappropriate joinder of both the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs and the Commonwealth.

3. The applicant, a citizen of Columbia, supported his application for an order nisi by an affidavit dated 29 May 2003.  He was invited by letter of 7 December 2004 to supplement his affidavit by written submissions.  The applicant replied to this letter by seeking an extension of time.  However, although the extended date has long passed he has made no further submissions. 

4. I propose to deal with the application on the papers. 

5. The applicant’s affidavit suggests that he wishes to avail himself of the reasoning of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601. His complaint appears to be that the RRT did not have before it, and therefore failed to consider, country information referred to in Part B of the delegate’s decision. The applicant asserts in his affidavit that had he known that the RRT had not looked at the country information favourable to his case, he would have made copies available and drawn them to the RRT’s attention.

6. The applicant’s affidavit is drafted at a high level of generality.  It does not identify precisely what information referred to in Part B of the delegate’s decision was favourable to his case.  Nor does the affidavit explain how the information would have assisted his case.

7. There is nothing to indicate that the RRT did not have before it the documents referred to in Part B of the delegate’s decision.  The only document that might be thought to be favourable to the applicant’s case was a release by the Associated Press of 24 April 1997.  That release acknowledged that the two most serious rebel challenges to the Government of Columbia came from The Revolutionary Armed Forces of Columbia (‘FARC’) and the National Liberation Army (‘ELM’).

8. The RRT did not express any doubts about the proposition supported by the press release.  Rather, it rejected as implausible the applicant’s claims that FARC had threatened him in order ensure that he would continue to provide information about clients who had patronised his lottery agency business.  The RRT found that the applicant’s claims were implausible for a variety of reasons, which it recounted in some detail in its reasons.

9. The RRT further found that, even if the applicant’s claims had been credible, he could have relocated elsewhere in Columbia without fear of persecution.

10. The absence of any specific reference in the RRT’s reasons to the Associated Press release does not establish a failure to accord procedural fairness to the applicant.  On the RRT’s findings, the contents of the release were irrelevant. The applicant failed because the RRT regarded his factual claims as implausible and, in any event, considered that he could safely relocate elsewhere in Columbia.

11. The applicant also asserts more generally that he was denied procedural fairness by the RRT.  No particulars of that claim have been provided.  The RRT’s reasons indicate that the applicant was given an opportunity to respond to particular matters adverse to his case.  In particular, he was given an opportunity to comment on information suggesting that the Columbian authorities displayed a ‘harsh attitude toward FARC’s thuggery’ and that it was open to him to relocate within Columbia.

12. On the material before me, the applicant has not made out an arguable case that the RRT committed jurisdictional error.  The application for an order nisi should therefore be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:            

Date of judgment: 1 September 2005